May 03, 2012

Among the many joys of having Judith Wegner as a colleague and a friend are that she is not only tireless in her thoughtful contributions to your work, she has the great gift of being able to see a complex situation clearly. In response to my last post about how school-funded bridge positions are or could be paid for, Judith posted a Comment raising a number of very serious and legitimate concerns. The issues Judith raises seem well worth further discussion, which I attempt here.

Are law schools funding bridge positions out of a desire to maintain their US News rankings and the prestige of their brands, rather than (or predominating over) a concern for the welfare of their students? This is undoubtedly true for some of the schools that fund these positions, and quite possibly true for most or all of them. Does that make school-funded bridge positions a bad idea? In my view, not necessarily.

Unlike any number of other tactics inspired by blind competition for US News rankings that are irrelevant or even inimical to the quality or value of the professional education a law school might offer, this is one that—properly administered (an important qualification discussed below)—could potentially complement the school's educational mission and directly enhance the value of a student's degree. The fact that the school is engaging in the tactic for the sole or predominant purpose of improving its ranking may affect how the benefit is administered, which in turn may affect the degree to which the tactic actually benefits students. But sometimes unintended consequences are good.

It does seem clear that private schools with more money are using some of that money to improve their placement numbers. (See my earlier post here.) But is this necessarily bad or invidiously unfair? The fact is that richer schools can use their superior resources to benefit their students in all kinds of ways. If they use those resources to fund postgraduate bridge positions, and those positions actually provide students with useful practice experience and improved entrée into a constricted job market, that’s a good use of resources. And if a law school uses its superior resources effectively to provide greater benefits to its students, it deserves a higher ranking.

Are students being forced to bear the cost of this benefit (assuming for the moment that it is a benefit, whether or not expressly so intended)? In some sense they are. Certainly if a school is spending (say) $1 million per year on postgraduate bridge fellowships, unless the money comes from a grant restricted to this purpose the school could spend that money on something else. That something else could be reduced tuition across the board, or scholarships, or faculty salaries, or facilities improvements, or eggs benedict in the student lounge every morning. But it's the dean's job to decide how to allocate the funds available to the benefits obtainable, and deciding to allocate this additional money to student placement and training (which is what the benefit is, assuming that there is one) is not inherently irrational or unfair.

Okay, then, is it unfair that this benefit does not uniformly benefit all students at the school? Not necessarily. Nearly every educational benefit is consumed unevenly. Some students use the library more than others; some use Career Services more than others. Some students need the kind of special educational assistance programs most law schools provide, while others don't. No one thinks it's “unfair” to provide this kind of extra help (often in the form of very expensive one-on-one tutoring) to only a relatively small portion of the class. So to the extent that you could say that school-funded bridge programs are directly reflected in higher tuition (a doubtful proposition, as tuition reduction is only one alternative application of the funds at issue), neither the cost nor the distribution of the resulting benefit is obviously improvident.

Are school-funded bridge positions misleading to prospective law students who assume that high-priced or high-prestige schools offer better prospects for placement? Quite possibly, at least up till now. And that’s a shame. As an aside, I’d like to draw a distinction between schools that are high-prestige (which essentially reflects a reputation for quality in some general sense, often deserved) and those that are merely high-priced. Many low-prestige law schools are as or nearly as expensive to attend as Harvard; and ironically it is the higher-prestige schools that disproportionately offer school-funded bridge positions to their recent graduates (see here).

But back to the question—are school-funded bridge positions misleading prospective students? US News has inexplicably treated holders of temporary school-funded positions as equivalently “employed” to those with full-time paying law jobs, while assigning 18% of its ranking to placement outcomes. This has likely skewed those rankings, which are reportedly the single most influential factor affecting prospective students’ choices for application and attendance. And while some schools reporting placement outcomes on their websites have expressly disclosed what proportion of their graduates hold school-funded positions, a number have not. Starting next year, however, the ABA Section on Legal Education likely will require this disclosure, and US News has pledged to change the way it calculates the placement factor in its law school rankings (though it hasn’t said how yet). All in all, the more we talk about it, the less misleading it gets.

All of which brings us down to the single most pragmatically important question: Do these placements actually help students enough to be worth the candle? The empirical data are incomplete, and I think the best we can fairly say is “maybe.” As I’ve previously mentioned, we just don’t know how many of the recipients of bridge positions this year or last are finding long-term full-time law jobs, and it will be very difficult ever to determine how many would have gotten comparable jobs in a comparable time without the bridge positions. Nor do we have very much detail regarding whether the existing programs are well administered, and thus as effective as they could be. The positions need to be the right kinds of jobs, involving real supervised legal work (rather than mere clerical or administrative work, or cloistered research for academics). The anecdotal data we have now suggest that many bridge positions are the right kind, but there is more to learn, and what we learn will likely suggest flaws in some programs. The beneficiaries have to be the right kinds of students, generally those who will actually be materially more employable at the end of the placement than they were at the beginning. We have very little data about this variable, but I would guess that a concern for selecting the graduates most likely to benefit from the bridge position is largely absent from most programs.

All told, then, an attitude of inquiry and even skepticism about this tactic is fairly merited. But current educational and placement models are resulting in dispiriting and even disturbing outcomes. Innovation is essential, and experimentation—with intelligent planning and due regard for the consequences of failure—should not be rejected out of hand. And some of the best conceived experiments will fail.

Comments

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Bernie,

Thanks for your series of informative posts on this topic. Your statistics have been very helpful. I wonder, however, whether you are being too charitable toward law schools in some of your descriptions of this practice.

Your first post on this topic appeared to deny that schools are being misleading or are gaming US News:

"Let me be clear:...Nor do these data suggest that any benefit of this kind is intended to mislead anyone regarding a school’s postgraduate employment prospects. Again to the contrary, this is a rational strategy to help graduates find permanent law jobs in the current depressed market, for the simple reason that the best way to get a job is to have one, and the experience and references it provides, from which to move on."

You appear to suggest that law schools are doing this out of their own pure motives. Although your current post acknowledges the gaming aspects, it continues to downplay the misleading aspect:

"Are law schools funding bridge positions out of a desire to maintain their US News rankings and the prestige of their brands, rather than (or predominating over) a concern for the welfare of their students? This is undoubtedly true for some of the schools that fund these positions, and quite possibly true for most or all of them....

But back to the question—are school-funded bridge positions misleading prospective students? US News has inexplicably treated holders of temporary school-funded positions as equivalently “employed” to those with full-time paying law jobs, while assigning 18% of its ranking to placement outcomes. This has likely skewed those rankings.... And while some schools reporting placement outcomes on their websites have expressly disclosed what proportion of their graduates hold school-funded positions, a number have not. Starting next year, however, the ABA Section on Legal Education likely will require this disclosure, and US News has pledged to change the way it calculates the placement factor in its law school rankings (though it hasn’t said how yet). All in all, the more we talk about it, the less misleading it gets."

The straightforward answers to the questions you pose, in my view, is that law schools are definitely doing it to boost their US News rank (while extending a bit of help to grads in a tough spot) and this practice is certainly misleading.

When musing about whether this practice is misleading, we should not assume that what we know and talk about is also known by most prospective students applying to law school. I doubt that many of them read this blog (no offense) or my own posts on these topics. And while more and more law schools (after a great deal of prodding and arm twisting) disclose this information on their websites--although many still do not--the information supplied by law schools is not always easy to apprehend (as you noted in a previous post).

Given all the bad publicity about law schools lately, prospective students may be aware that advertised employment rates should be taken with a grain of salt, but that awareness alone does not tell them what the real underlying numbers are at any given school. Your charity is admirable, but until we clear up this problem, I don't think we should downplay it. This practice, and the way we report it, misleads our consumers into thinking employment results are better than they really are.

Having said that, I agree that it is useful to consider ways to make these programs better, and the underlying data you provide is very helpful toward that end.

Brian, Your reading of my prior posts, and the point you make about the need for continuing vigilance and comment, are both quite fair. When I started writing about this issue, there were no data of which I was aware indicating how many schools were offering school-funded bridge positions and not publicly disclosing it. That only became apparent after the ABA released its Class of 2010 data. Overall, I’d have to say that my views on this aspect of the subject have evolved as I’ve acquired and considered more data, though not as much you apparently think they should have. Let me try to explain why.

The proliferation of school-funded bridge positions in the last few years raises (among others) two distinct questions—(1) what is motivating the schools that do it, and (2) whether it is “misleading” or “dishonest” to do it but not publicly disclose it.

You and I appear to agree that the motivation at most schools that offer bridge positions is some combination of a desire to improve their US News rankings and a desire to help recent graduates gain practical training and succeed in the job market. You seem to think that a school’s motivation has some bearing on the morality of its administration; I don’t. The reason is that, in my view, a school that helps its students get better practical training and job placements is doing a good thing, something that should make us view it as a “better” school than one that did less in this regard (all other things being equal). I would hope you would agree. Accordingly, a well-conceived ratings system would credit schools’ efforts to assist their students in these areas. This may be one of those rare instances where the US News ranking formula provides some appropriate incentives. Or as I put it in the post above: “ If [a law school] use[s its] resources to fund postgraduate bridge positions, and those positions actually provide students with useful practice experience and improved entrée into a constricted job market . . . , it deserves a higher ranking.”

Whether applying but not publicly disclosing the tactic is “misleading” or “dishonest” is more difficult. I suppose it is fair to say that schools funding a significant number of such positions and treating them as “employed” in their placement reporting without further explanation are not providing placement information consistent with most likely users’ needs or expectations, and in that sense are providing information that is “misleading.” (For what it’s worth, my own institution, the University of North Carolina, does not fund any short-term postgraduate positions of which I’m aware, so I have no axe to grind on that score.) US News has fostered and amplified this inaccuracy by treating temporary school-funded positions as “employed” for purposes of its reporting and ranking, and that’s regrettable.

But have any of the schools that have not disclosed the fact or extent of their funding of bridge positions failed to do so dishonestly, for example by intending to mislead prospective students (or others) into making ill-informed decisions? I certainly hope not, and I would like to think that any errors involved were merely ones of omission. But of course I don’t know. I can understand the urge to find out, and to call any actual malefactors to account. For my own part, however, while I’m not interested in making any apologies for anything that’s happened, I would prefer to devote my energies prospectively to devising tactics for improving educational and placement outcomes, and methods for accurately measuring the extent to which we’ve succeeded in doing so. I could use all the help I can get, Brian, so I hope you’ll continue to comment on my posts, and continue to contribute your own on Balkinization. Thanks for speaking up.